Trial Issues

Question 1

Right to Jury Trial

Answer 1

• Must demand in writing, no later than 10 days after service of last pleading raising jury triable issue
• 7th amendment preserves right in law but not in equity in civil cases over $20

Question 2

Right to Jury Trial (CA)

Answer 2

Generally demand at trial setting conference

• 25 days before trial scheduled to proceed, deposit jury fees.
• CA constitution protects right to jury trial, but not in small claims court

Question 3

Jury Trial Waiver (CA)

Answer 3

• failure to appear at trial
• agreement
  
  • written consent
  • oral consent in open court/on record
  • by stipulation
  • by contract (CA and Fed)
• failure to announce at time case set for trial
• failure to deposit daily jury fees
• failure to advance jury fees

Note: CA more likely to reinstate jury trial after inadvertent waiver

Question 4

Law/Equity Distinction

Answer 4

• focus on remedy
  
  • CA: focus on historical treatment of cause of action
• always try jury issue (legal issue) first, even if legal claim incidental, then try equitable
  
  • **CA: equity first rule: judge may first resolve factual issue (without jury) in equity complaint. If any legal issues remain, they may be tried by jury (Contra to fed)

Question 5

Non-Suit (***CA)

Answer 5

Motion BY D after P’s opening statement or P’s conclusion of presentation of evidence: grounds are that facts are legally insufficient (RJ effects)
-acts as delayed demurrer attacking opening statement and/or case in chief, which may be granted as to some issues or all issues and is an adjudication on the merits (res judicata effect, but P is usually allowed to re-open)

***No fed counterpart

Question 6

Directed Verdict (CA)

Answer 6

Similar to nonsuit, but may be made by either party in a jury trial

• at completion of presentation of all evidence
• challenges the legal sufficiency of the non-moving party’s evidence
• adjudication on the merits (res judicata effect)

Question 7

Motion for Judgment as Matter of Law

Answer 7

• Motion made during bench/jury trial, asserting that there is no legally sufficient evidentiary basis for a jury to find for the other party
• timing:
  
  • by D - twice (close of P’s evidence, close of all evidence)
  • by P - once, at close of all evidence

Question 8

Verdict (CA)

Answer 8

CA Constitution: permits 3/4 of the jury to render a verdict in a civil case